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What's Hot in Workers' Comp

The Appellate Division Affirms Dismissal of Petitioner’s Three Claim Petitions for Failure to Sustain Burden of Proof.

Lindell v. W.H. Indus., Inc., No. A-1815-20 (App. Div. June 1, 2022)

July 1, 2022

by Kiara K. Hartwell

The petitioner began working for the respondent in 1999. In 2001, she was struck by a car and her right hand went through the windshield. She underwent surgery to repair her hand and another later to remove a neuroma. She also underwent pain management treatment, therapy and medication. She was diagnosed with right hand reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS).

In 2009, the petitioner filed two claim petitions—for June 27, 2007, and September 14, 2007, incidents—in which she allegedly injured her right hand. She was still receiving treatment at the time of the June 27, 2007, incident. She then filed a third claim petition for a right hand injury on August 12, 2009. The petitioner stopped working then and alleged her pre-existing RSD/CPRS was aggravated by these incidents. The respondent filed its answers for the June 27, 2007, and August 12, 2009, incidents, confirming the incidents arose out of and in the course of employment and paying all benefits.

After the 2007 incidents, the petitioner was authorized to continue treatment with Dr. Schlifstein until care was transferred to Dr. E. Freeman in 2013. Dr. Freeman treated the RSD/CPRS diagnosis, but he never made a causation determination as the petitioner had come to him with that condition. He relied on the petitioner’s subjective complaints, noting she had a “very mild case” of RSD/CPRS “if you believe her subjective complaints.”

On September 21, 2015, the petitioner was riding her bicycle when she was hit by a car. Eight days after, she saw Dr. Freeman, claiming she had a flare-up of pain due to weather, but she never told him about the car accident. She did not disclose it to him as she was “fuzzy” due to the loss of a family member. In 2016, she underwent cervical and lumbar surgeries and failed to disclose them to Dr. Freeman, even though she saw him shortly before or after the surgeries. Dr. Freeman found out about the 2015 incident after being advised by the respondent in 2017. The petitioner also saw Dr. Schlifstein after the 2015 incident, but allegedly only for her left side, and he prescribed various medications. Dr. Freeman noted he was unaware the petitioner was getting treatment and prescribed medication by other doctors. Dr. Freeman noted the petitioner filled prescriptions from other providers while under his care after a review of pharmacy records.

Dr. Freeman was called as a witness by the petitioner. He testified that there was no evidence the 2009 work incident caused RSD or that it became worse. He confirmed that after the 2015 incident, the petitioner had pain flare-ups, which could have been related to the surgeries after the 2015 incident. Dr. S. Dane, the petitioner’s expert neurologist, then testified that the RSD/CPRS was aggravated by the 2009 incident, but no subsequent aggravation. He confirmed the petitioner did not tell him about the 2015 incident or surgeries when he initially examined her in 2017. He noted that many of her complaints could have been the result of cervical radiculitis due to the surgery, that the RSD diagnosis was based on her subjective complaints, and he only had one progress note from Dr. Schlifstein prior to the 2009 incident.

The respondent’s expert, Dr. C. Effron, testified, noting no objective findings of RSD and that there was no permanent disability to her right hand. 

The Workers’ Compensation Judge dismissed all three claim petitions for failure to sustain her burden of proof. The judge found the petitioner intentionally did not tell Dr. Freeman about the 2015 incident, that her assertion she only saw Dr. Schlifstein for her left side to be “blatantly absurd,” and “incredible” that Dr. Freeman did not ask her about changes in her medical history. She found Dr. Freeman to be credible and believed Dr. Effron’s testimony that the petitioner failed to disclose the 2015 incident. Overall, the judge found the nondisclosure of the 2015 incident, coupled with her lying about filling multiple doctors’ prescriptions, damaged the petitioner’s credibility. The judge also noted the petitioner stopped working after the 2009 incident, but provided no expert opinion that she was 100% disabled or that she was unable to work.

The petitioner appealed, arguing she met her burden of proof and the judge erred in various aspects. The Appellate Division disagreed, noting the judge’s assessment of credibility was crucial and found no error with the Judge’s admission of the pharmacy records. Even ignoring the pharmacy records, the Appellate Division pointed out that the judge found the petitioner lied about filling prescriptions from other doctors and there was no error in considering evidence regarding the 2015 incident. 

Although the petitioner argued the judge ignored the stipulations, which were to focus on the issue of the nature and extent of permanent disability, the Appellate Division disagreed. The judge found no objective medical evidence or material lessening due to the 2007 incidents and the petitioner’s credibility impacted any finding of permanency for the 2009 incident. The Appellate Division confirmed that providing medical treatment did not necessarily mean a finding of any partial permanent disability.
 

 

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